ALL ABOUT PREMISES LIABILITY

Premises liability refers to the area of law which deals with injuries sustained while on the property (i.e., premises) of another. One common misconception about this area of the law is the incorrect belief that the owner of property is legally responsible for all injuries which occur on his property. However, the law in Oklahoma is that an owner of property is generally liable for only those injuries which result from the negligence of the owner or his employees.

Negligence is the failure to do what an reasonable person would have done, or the doing of something a reasonable person would not have done, under all of the circumstances.

As a matter of law in Oklahoma, a reasonable store owner will use at least ordinary care to (1) keep his premises in a reasonably safe condition for the use of his customers, and (2) remove or warn his customers of any hidden danger on the premises that the owners knows about or should know about, or that were created by him or his employees.

However, also as a matter of law in Oklahoma, an owner has no duty to protect customers from or warn them of any dangerous condition that is open and obvious.

The most common types of premises-liability cases are slip-and-fall cases, which usually occur on the slick linoleum floors of stores, and are often caused by some wet or moist substance (such as water or fruit) being on the floor. Despite the fact that people slip and fall every day without injury, other people can and do fall and sustain very serious injuries from a slip and fall.

Although very few slip-and-fall cases involve the proverbial banana peel, the banana peel will serve in this article as an example to give an overview of a typical slip-and-fall case. Suppose that Carol Customer is walking down the produce aisle in the local grocery store in search of a ripe kumquat. While Carol is walking around the kumquat bin carefully examining the kumquats, she fails to see a banana peel on the floor, steps on the peel, slips, and suffers a skull fracture.

Although Carol does not know how long the peel had been on the floor or how it got there, Carol can argue that the store failed to warn her of, or remove, the banana peel on the floor, and that the banana peel constituted a hidden danger. The owner will argue that the banana peel was an open and obvious danger, and the Carol's fall was the result of her own negligence in not seeing the banana peel.

Unless Carol settles with the store owner out of court, this case will likely end up in court. Although under some conditions a judge can grant judgment in favor of either party, many of these cases must be decided by a jury. Carol's case would likely be submitted to a jury, which would be instructed as follows: "A banana peel lying on the floor might be a hidden danger if Carol did not actually see and would not be expected to notice it in the exercise of ordinary care. A banana peel does not need to be totally or partially obscured from sight in order to be a hidden danger if the circumstances are such that Carol would not be expected to notice it in the exercise of ordinary care."

To help the jury decide this issue, the jury would then be presented with evidence as to many factors, such as how close the color of the banana peel was to the color of the floor, what foreseeable stimuli would reasonably be distracting Carol from watching where she was stepping, whether other people saw the peel, how long it had been there, and where it was in relation to store displays (such as whether Carol's ability to see the peel was obscured by the overhang of a fruit bin).

The store owner will argue that it cannot afford to hire enough employees to follow every customer around the store to make sure that each customer does not drop anything on the floor, and that it takes reasonable steps to periodically clean an inspect floors for any dangers. If the store owner can prove that five minutes before Carol slipped on the peel that the produce aisle was thoroughly swept and mopped (thus indicating that the peel had been dropped by a customer just minutes before Carol walked down the produce aisle, and that therefore the owner and his employees should not reasonably be expected to have found the peel in that short time), Carol will have a difficult time winning in court.

However, if thirty minutes before Carol slipped, a customer informed the owner that the customer had dropped a banana peel, but that the owner said, "I'm busy watching the football game now, but I'll see about later," Carol will have a very good case.

As was previously explained, premises liability refers to the area of law which deals with injuries sustained while on the property (i.e., premises) of another. As we have previously dealt primarily with slip-and-fall cases, we will now address other types of premises liability, including cases in which the negligence of an owner/tenant combines with the negligent acts of a third person.

Customers are sometimes injured when something--perhaps merchandise, shelving or a ladder--falls on the customer. If the negligence of the owner/tenant or his employees was a cause of the injuries, then the owner/tenant can generally be held liable.

For example, several years ago a man was shopping in a Colorado Wal-Mart, when some heavy merchandise came crashing down on his head. The force of the blow to his head was so great that he was partially paralyzed. The man sued Wal-Mart, alleging negligence in stacking merchandise so high that it was unstable. Recently, a Colorado jury awarded the man several million dollars for his injuries. Apparently, the jury believed that Wal-Mart was more concerned about saving floor space and increasing profits than the safety of its customers.

Other types of cases involve not just the negligence of the owner/tenant or his employees, but also the negligence of a third person, such as another customer. For example, a store clerk may negligently leave a ladder where it is likely to hurt someone if it falls, but it may be a customer who negligently swings his arms and knocks it over.

In such a case, the negligence of the customer who knocked over the ladder generally does not relieve the owner/tenant of liability to the injured customer; however, it makes the negligent customer liable along with the owner/tenant. So long as the injured customer was not negligent, the injured customer is entitled to recover all of his damages from owner/tenant and/or the negligent customer. In other words, even though the negligent customer was part of the cause of the injured customer's injuries, the negligent customer may collect all of his damages from the owner/tenant (which is usually the case since store owners generally have a better ability to pay than the average customer, and because store owners often have insurance to cover such a loss.

However, there is an exception to the foregoing general rules: if the negligence of a customer or other third person was (1) independent of the owner/tenant's negligence, (2) adequate by itself to cause the injuries, and (3) not reasonably foreseeable by the owner/tenant, the owner/tenant's negligence is said to be a superseding cause, and the owner/tenant's liability is "cut off" by the negligent customer's negligence.

But this exception obviously has very limited application. In the above example of the falling ladder, the negligent customer's negligence is not adequate by itself to cause the injuries; only when combined with the negligent leaving of the ladder did the negligent arm swinging cause injury. Therefore, the second element of a superseding cause is not met.

In addition, the negligent arm swinging does not satisfy the third element of a superseding cause, since the negligence of a third person in knocking over a negligently-placed ladder is reasonably foreseeable. Therefore, the third element of a superseding cause is not met.

As was previously explained, premises liability refers to the area of law which deals with injuries sustained while on the property (i.e., premises) of another. The following deals with the criminal acts of a third person.

Property owners/tenants can be liable for injuries sustained on their property as the result of a criminal attack by a third person. For example, customers have been assaulted and sometimes raped in mall parking lots. Although the assailant is civilly liable for the injuries he causes, the assailant is usually unknown or at least judgment proof (i.e., he has no wherewithal to pay any judgment against him).

Therefore, an assaulted customer usually must resort to suing the property owner/tenant in order to recover for his damages. As was mentioned previously, however, an owner/tenant is generally not responsible for such damages unless the negligence of the owner/tenant was a cause of the damages.

If the customer can establish that previous assaults had occurred on the premises and that the owner/tenant failed to take reasonable security measures (e.g., increased lighting or increased patrolling of the premises by a private security firm), the customer will have a very good chance of recovering.

On the other hand, if the owner/tenant can establish that there was no previous significant criminal activity, the owner/tenant may be able to convince a jury that the level of lighting and other security measures was adequate. In that event, the jury would find that the owner/tenant was not negligent, and the customer would not be able to recover.

One recent case involved a lady who was attacked in the parking lot of an Oklahoma City restaurant. The restaurant asked the trial judge to dismiss the case based on its claim that there had been no previous criminal activity on the restaurant's premises and that all of its security measures were reasonable. The trial judge agreed and dismissed the case, and the victim appealed. The appellate court recognized that several of the restaurant's waitresses had noticed a suspicious-looking man wandering around the parking lot for a long time, as if he were looking for something to steal or someone to rob. Rather than call the police or warn customers as they were leaving the restaurant, the waitresses decided to "wait to see whether the man was going to do anything."

Of course, when the man "did something," it was too late for one of the restaurant customers, who was assaulted. Therefore, the appeals court decided that there was sufficient conflicting evidence as to the negligence of the restaurant that a jury should decide the matter, and the appeals court ordered the trial judge to conduct a jury trial in the case. It will be interesting to see whether a jury believes that the restaurant's actions and inactions were reasonable.

The obvious lesson from this case is that owners and tenants should not "wait" when any suspicious activity is noticed. Instead, prompt action should be taken to insure the safety of all customers and other people who are expected to be on the property. While a store owner may be hesitant to immediately call the police every time suspicious people or activities are observed, other actions can be taken, such as asking suspicious-acting people to leave the premises, or assigning an employee to monitor suspicious-acting people, or escorting customers to their cars.

This "Legal Update" is provided as a public service of Garvin, Agee, Carlton & Mashburn. It is intended to provide general information about the law, and is not a substitute for the advice of an attorney as to specific facts and circumstances. Anyone having any questions regarding the matter contained in this article, or needing advice as to specific facts or circumstances, should contact an attorney practicing in the appropriate area of the law.

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